CASE OF BOSPHORUS HAVA YOLLARI TURİZM VE TİCARET ANONİM ŞİRKETİ v. IRELAND 4 страница

119. For these reasons, the applicant company maintained that the exercise of discretion by the Irish authorities as described above regarding the impoundment of its aircraft should be reviewed by this Court for its compatibility with the Convention.

2. Article 1 of Protocol No. 1

120. The applicant company maintained that the interference with its possessions (the impoundment) amounted to a deprivation which could not be described as “temporary” given its impact. It was also unlawful, since the Government had not produced any documentary evidence of the legal basis for the interference and since implementing Statutory Instrument no. 144 of 1993, indicating which authority was competent to impound, was not adopted until after the impoundment.

121. Moreover, such an interference was unjustified because it was not in accordance with the “general principles of international law” within the meaning of Article 1 of Protocol No. 1 and because it left an innocent party to bear an individual and excessive burden, as the Government had failed to strike a fair balance between the general interest (the international community's interest in putting an end to a war and the associated significant human rights violations and breaches of humanitarian law) and the individual damage (the significant economic loss of an innocent party).

In particular, the applicant company considered that certain factors distinguished its case from AGOSI and Air Canada (both cited above). It also considered unjustifiable the situation which obtained after the adoption of Regulation (EC) no. 2472/94 (its aircraft remained grounded while those of JAT could fly). Compensation was an important element in the overall justification and its absence in a de facto deprivation situation generally amounted to a disproportionate interference. This was especially so in the present case, as the aim of the sanctions regime could have been achieved while paying it compensation. Finally, the applicant company made a number of allegations concerning the State's relationship with TEAM and argued, notably, that the Government's failure to prosecute TEAM (when, inter alia, the Sanctions Committee had recognised that TEAM had broken the sanctions regime) highlighted the unjustifiable nature of the applicant company's position, a foreign company innocent of any wrongdoing. In this latter respect, the applicant company reaffirmed its bona fides, replied in detail to the Government's allegations of bad faith and pointed out that all the courts before which the case was examined had confirmed its innocence.

C. The third-party submissions

1. The European Commission (“the Commission”)

(a) Article 1 of the Convention

122. The Commission considered that the application concerned in substance a State's responsibility for Community acts: while a State retained some Convention responsibility after it had ceded powers to an international organisation, that responsibility was fulfilled where there was proper provision in that organisation's structure for effective protection of fundamental rights at a level at least “equivalent” to that of the Convention. The Commission therefore supported the approach adopted in M. & Co. (cited above) and urged the Court to adopt this solution pending accession to the Convention by the European Union. Thereafter, any Convention responsibility, over and above the need to establish equivalent protection, would only arise when the State exercised a discretion accorded to it by the international organisations.

123. The Commission considered this approach to be consistent with the recent case-law of this Court. The reference in Matthews (cited above)to a State's Convention responsibility continuing after a transfer of competence to the European Community and to the Convention responsibility of the United Kingdom was consistent with the M. & Co. approach, given the differing impugned measures in issue in both cases. Waite and Kennedy and Beer and Regan (both cited above)fully confirmed the Commission's position. Cantoni was clearly distinguishable, as this Court had reviewed the discretion exercised by the French authorities to create criminal sanctions in implementing a Community directive.

124. The reason for initially adopting this “equivalent protection” approach (facilitating State cooperation through international organisations) was equally, if not more, pertinent today. It was an approach which was especially important for the European Community given its distinctive features of supranationality and the nature of Community law: to require a State to review for Convention compliance an act of the European Community before implementing it (with the unilateral action and non-observance of Community law that would potentially entail) would pose an incalculable threat to the very foundations of the Community, a result not envisaged by the drafters of the Convention, supportive as they were of European cooperation and integration. Moreover, subjecting individual Community acts to Convention scrutiny would amount to making it a respondent in Convention proceedings without any of the procedural rights and safeguards of a Contracting State to the Convention. In short, the M. & Co. approach allowed the Convention to be applied in a manner which took account of the needs and realities of international relations and the unique features of the Community system.

125. In the opinion of the Commission, the respondent State had no discretion under Community law. When a case involved an Article 177 (now Article 234) reference, this Court should distinguish between the respective roles of the national courts and the ECJ, so that if the impugned act was a direct result of the ECJ's ruling this Court should refrain from scrutinising it.

In the Commission's view, Ireland was obliged (especially given the opinion of the Sanctions Committee) on account of its duty of loyal cooperation (Article 5, now Article 10, of the EC Treaty) to appeal the judgment of Mr Justice Murphy of the High Court to the Supreme Court in order to ensure effective implementation of Regulation (EEC) no. 990/93. The Supreme Court, as the last-instance court, was obliged under Article 177 (now Article 234) of the EC Treaty to make a reference to the ECJ since there was no doubt that the government's appeal before it raised a serious and central question of interpretation of Community law. The Supreme Court asked the ECJ whether Article 8 of Regulation (EEC) no. 990/93 applied to an aircraft such as that leased by the applicant company and the ECJ ruled that it did, having reviewed the fundamental rights aspects of the case so that, although the ECJ could not examine the particular facts of cases, the impoundment in question was conclusively assessed and decided by the ECJ. The ruling of the ECJ was binding on the Supreme Court.

In those circumstances, the Supreme Court had no discretion to exercise and, consequently, its implementation of the ECJ ruling could not be reviewed by this Court.

126. Moreover, the Commission considered that “equivalent protection” was to be found in Community law and structures. It outlined the developing recognition of the Convention provisions as a significant source of general principles of Community law, which governed the activities of the Community institutions and States and was implemented by the Community's judicial machinery, and noted the relevant Treaty amendments reinforcing these case-law developments.

127. Finally, the Commission considered that the ruling in Kondova (cited above) clearly supported its position that discretionary acts of the State remained fully subject to the Convention. The applicant company's reliance on Article 234 (now Article 307) of the EC Treaty was erroneous and the conclusions drawn therefrom inappropriate: in expressing international law principles such as pacta sunt servanda, the said Article simply confirmed the starting-point of the relevant Convention analysis, namely, that a State cannot avoid its Convention responsibilities by ceding power to an international organisation.

(b) Article 1 of Protocol No. 1

128. The Commission considered it indisputable that Regulation (EEC) no. 990/93 constituted the legal basis for the impoundment. It rejected the applicant company's suggestion that the impoundment was unlawful pending national secondary legislation and agreed with the Government that the implementing statutory instrument contained administrative competence and procedural provisions which had no bearing on the directly applicable nature of Regulation (EEC) no. 990/93. For the reasons set out in the Advocate General's opinion and the ECJ's ruling, the Commission argued that the impoundment until October 1994 was proportionate and it did not find persuasive the applicant company's argument that it was unjustified thereafter.

2. The Italian Government

129. As regards Article 1 of the Convention, the Italian Government considered that the case amounted to a challenge to the provisions of the relevant UNSC resolution and European Community regulation and fell, as such, outside the Court's jurisdiction. The Irish State was obliged to implement these instruments, it was obliged to address the relevant organs (the Sanctions Committee and the ECJ) and to comply with the rulings obtained: this warranted a conclusion of incompatibility ratione personae. As to the original handing over of sovereign power to the United Nations and European Community, the Italian Government also relied on M. & Co., arguing that both the United Nations and the European Community provided “equivalent protection”: this warranted a conclusion of incompatibility ratione materiae or personae. Finally, any imposition of an obligation on a State to review its United Nations and European Community obligations for Convention compatibility would undermine the legal systems of international organisations and, consequently, the international response to serious international crises.

130. On the merits of Article 1 of Protocol No. 1, they underlined the importance of the public-interest objective pursued by the impoundment.

3. The United Kingdom Government

131. The United Kingdom Government considered that, since the complaint was against the European Community, it was incompatible with the Convention provisions. To make one member State responsible for Community acts would not only be contrary to Convention jurisprudence, but would also subvert fundamental principles of international law (including the separate legal personality of international organisations) and be inconsistent with the obligations of member States of the European Community. They relied on M. & Co., cited above, noting that human rights safeguards within the Community legal order had been further strengthened since the adoption of the decision in that case.

132. On the merits of the complaint under Article 1 of Protocol No. 1, the United Kingdom Government underlined the importance of the public interest at stake, considered that the margin of appreciation was therefore wide, and argued that, even if the applicant company was an innocent party, this would not render the interference with its property rights disproportionate (see AGOSI and Air Canada, both cited above).

4. The Institut de formation en droits de l'homme du barreau de Paris (“the Institut”)

133. The Institut considered the case compatible with the provisions of the Convention. However, it was equally of the view that this would not prevent member States from complying with their Community obligations or mean that the Court would have jurisdiction to examine Community provisions in the light of the Convention. The application was compatible ratione personae, since the object of the case was not to challenge United Nations or European Community provisions but rather Ireland's implementation of them. It was compatible ratione materiae because Article 1 of the Convention did not exclude a particular type of measure or any part of a member State's jurisdiction from scrutiny. The Institut pointed, by way of illustration, to the matters assessed by the Court in a number of cases including those of Cantoni, Matthews, and Waite and Kennedy (all cited above). Since neither the United Nations nor the European Community provided equivalent human rights protection (especially when seen from the point of view of individual access to that protection and the limitations of the preliminary reference procedure), the complaint had to be found compatible with the provisions of the Convention.

134. As to the merits of the complaint under Article 1 of Protocol No. 1, the Institut considered the initial impoundment of the aircraft to be entirely justified but left open the justifiability of the retention of the aircraft after October 1994.

III. THE COURT'S ASSESSMENT

A. Article 1 of the Convention

135. The parties and third parties made substantial submissions under Article 1 of the Convention about the Irish State's Convention responsibility for the impoundment given its Community obligations. This Article provides:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.”

136. The text of Article 1 requires States Parties to answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “jurisdiction” (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 311, ECHR 2004-VII). The notion of “jurisdiction” reflects the term's meaning in public international law (see Gentilhomme and Others v. France, nos. 48205/99, 48207/99, and 48209/99, § 20, 14 May 2002; Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §§ 59-61, ECHR 2001-XII; and Assanidze v. Georgia, no. 71503/01, § 137, ECHR 2004-II), so that a State's jurisdictional competence is considered primarily territorial (see Banković and Others, § 59), a jurisdiction presumed to be exercised throughout the State's territory (see Ilaşcu and Others, § 312).

137. In the present case it is not disputed that the act about which the applicant company complained, the detention of the aircraft leased by it for a period of time, was implemented by the authorities of the respondent State on its territory following a decision made by the Irish Minister for Transport. In such circumstances the applicant company, as the addressee of the impugned act, fell within the “jurisdiction” of the Irish State, with the consequence that its complaint about that act is compatible ratione loci, personae and materiae with the provisions of the Convention.

138. The Court is further of the view that the submissions referred to in paragraph 135 above concerning the scope of the responsibility of the respondent State go to the merits of the complaint under Article 1 of Protocol No. 1 and are therefore examined below.

B. Article 1 of Protocol No. 1

139. Article 1 of Protocol No. 1 reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

140. It was not disputed that there was an “interference” (the detention of the aircraft) with the applicant company's “possessions” (the benefit of its lease of the aircraft) and the Court does not see any reason to conclude otherwise (see, for example, Stretch v. the United Kingdom,no. 44277/98, §§ 32-35, 24 June 2003).

1. The applicable rule

141. The parties did not, however, agree on whether that interference amounted to a deprivation of property (first paragraph of Article 1 of Protocol No. 1) or a control of the use of property (second paragraph). The Court reiterates that, in guaranteeing the right of property, this Article comprises “three distinct rules”: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The three rules are not “distinct” in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see AGOSI, cited above, p. 17, § 48).

142. The Court considers that the sanctions regime amounted to a control of the use of property considered to benefit the former FRY and that the impugned detention of the aircraft was a measure to enforce that regime. While the applicant company lost the benefit of approximately three years of a four-year lease, that loss formed a constituent element of the above-mentioned control on the use of property. It is therefore the second paragraph of Article 1 of Protocol No. 1 which is applicable in the present case (see AGOSI, cited above, pp. 17-18, §§ 50-51, and Gasus Dosier- und Fördertechnik GmbH v. the Netherlands, judgment of 23 February 1995, Series A no. 306-B, pp. 47-48, § 59), the “general principles of international law” within the particular meaning of the first paragraph of Article 1 of Protocol No. 1 (and relied on by the applicant company) not therefore requiring separate examination (see Gasus Dosier- und Fördertechnik GmbH, pp. 51-53, §§ 66-74).

2. The legal basis for the impugned interference

143. The parties strongly disagreed as to whether the impoundment was at all times based on legal obligations on the Irish State flowing from Article 8 of Regulation (EEC) no. 990/93.

For the purposes of its examination of this question, the Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law even when that law refers to international law or agreements. Equally, the Community's judicial organs are better placed to interpret and apply Community law. In each instance, the Court's role is confined to ascertaining whether the effects of such adjudication are compatible with the Convention (see, mutatis mutandis, Waite and Kennedy, cited above, § 54, and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II).

144. While the applicant company alluded briefly to the Irish State's role in the Council of the European Communities (see paragraph 115 above), the Court notes that its essential standpoint was that it was not challenging the provisions of the regulation itself but rather their implementation.

145. Once adopted, Regulation (EEC) no. 990/93 was “generally applicable” and “binding in its entirety” (pursuant to Article 189, now Article 249, of the EC Treaty), so that it applied to all member States, none of which could lawfully depart from any of its provisions. In addition, its “direct applicability” was not, and in the Court's view could not be, disputed. The regulation became part of domestic law with effect from 28 April 1993 when it was published in the Official Journal, prior to the date of the impoundment and without the need for implementing legislation (see, in general, paragraphs 65 and 83 above).

The later adoption of Statutory Instrument no. 144 of 1993 did not, as suggested by the applicant company, have any bearing on the lawfulness of the impoundment; it simply regulated certain administrative matters (the identity of the competent authority and the sanction to be imposed for a breach of the regulation) as foreseen by Articles 9 and 10 of the EEC regulation. While the applicant company queried which body was competent for the purposes of the regulation (see paragraph 120 above), the Court considers it entirely foreseeable that the Minister for Transport would implement the impoundment powers contained in Article 8 of Regulation (EEC) no. 990/93.

It is true that Regulation (EEC) no. 990/93 originated in a UNSC resolution adopted under Chapter VII of the United Nations Charter (a point developed in some detail by the Government and certain third parties). While the resolution was pertinent to the interpretation of the regulation (see the opinion of the Advocate General and the ruling of the ECJ – paragraphs 45-50 and 52-55 above), the resolution did not form part of Irish domestic law (Mr Justice Murphy – paragraph 35 above) and could not therefore have constituted a legal basis for the impoundment of the aircraft by the Minister for Transport.

Accordingly, the Irish authorities rightly considered themselves obliged to impound any departing aircraft to which they considered Article 8 of Regulation (EEC) no. 990/93 applied. Their decision that it did so apply was later confirmed, in particular, by the ECJ (see paragraphs 54-55 above).

146. The Court finds persuasive the European Commission's submission that the State's duty of loyal cooperation (Article 5, now Article 10, of the EC Treaty) required it to appeal the High Court judgment of June 1994 to the Supreme Court in order to clarify the interpretation of Regulation (EEC) no. 990/93. This was the first time that regulation had been applied, and the High Court's interpretation differed from that of the Sanctions Committee, a body appointed by the United Nations to interpret the UNSC resolution implemented by the regulation in question.

147. The Court would also agree with the Government and the European Commission that the Supreme Court had no real discretion to exercise, either before or after its preliminary reference to the ECJ, for the reasons set out below.

In the first place, there being no domestic judicial remedy against its decisions, the Supreme Court had to make the preliminary reference it did having regard to the terms of Article 177 (now Article 234) of the EC Treaty and the judgment of the ECJ in CILFIT (see paragraph 98 above): the answer to the interpretative question put to the ECJ was not obvious (the conclusions of the Sanctions Committee and the Minister for Transport conflicted with those of the High Court); the question was of central importance to the case (see the High Court's description of the essential question in the case and its consequential judgmentfrom which the Minister appealed to the Supreme Court – paragraphs 35-36 above); and there was no previous ruling by the ECJ on the point. This finding is not affected by the observation in the Court's decisionin Moosbrugger (cited and relied on by the applicant company – see paragraph 116 above) that an individual does not per se have a right to a referral.

Secondly, the ECJ ruling was binding on the Supreme Court (see paragraph 99 above).

Thirdly, the ruling of the ECJ effectively determined the domestic proceedings in the present case. Given the Supreme Court's question and the answer of the ECJ, the only conclusion open to the former was that Regulation (EEC) no. 990/93 applied to the applicant company's aircraft. It is moreover erroneous to suggest, as the applicant company did, that the Supreme Court could have made certain orders additional to the ECJ ruling (including a second “clarifying” reference to the ECJ) as regards impoundment expenses, compensation and the intervening relaxation of the sanctions regime. The applicant company's motion and affidavit of October 1996 filed with the Supreme Court did not develop these matters in any detail or request that court to make such supplemental orders. In any event, the applicant company was not required to discharge the impoundment expenses.

The fact that Regulation (EEC) no. 990/93 did not admit of an award of compensation was implicit in the findings of the Advocate General and the ECJ (each considered the application of the regulation to be justified despite the hardship it implied) and in the expenses provisions of the second sentence of Article 8 of the regulation. Consequently, the notions of uniform application and supremacy of Community law (see paragraphs 92 and 96 above) prevented the Supreme Court from making such an award. As noted in paragraph 105 above, Regulation (EC) no. 2472/94 relaxing the sanctions regime as implemented in the European Community from October 1994 expressly excluded from its ambit aircraft already lawfully impounded, and neither the ECJ nor the Supreme Court referred to this point in their respective ruling (of July 1996) and judgment (of November 1996).

148. For these reasons, the Court finds that the impugned interference was not the result of an exercise of discretion by the Irish authorities, either under Community or Irish law, but ratheramounted to compliance by the Irish State with its legal obligations flowing from Community law and, in particular, Article 8 of Regulation (EEC) no. 990/93.

3. Whether the impoundment was justified

(a) The general approach to be adopted

149. Since the second paragraph of Article 1 of Protocol No. 1 is to be construed in the light of the general principle enunciated in the opening sentence of that Article, there must exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised: the Court must determine whether a fair balance has been struck between the demands of the general interest in this respect and the interest of the individual company concerned. In so determining, the Court recognises that the State enjoys a wide margin of appreciation with regard to the means to be employed and to the question of whether the consequences are justified in the general interest for the purpose of achieving the objective pursued (see AGOSI, cited above, p. 18, § 52).

150. The Court considers it evident from its finding in paragraphs 145 to 148 above that the general interest pursued by the impugned measure was compliance with legal obligations flowing from the Irish State's membership of the European Community.

It is, moreover, a legitimate interest of considerable weight. The Convention has to be interpreted in the light of any relevant rules and principles of international law applicable in relations between the Contracting Parties (Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties, and Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI), which principles include that of pacta sunt servanda. The Court has also long recognised the growing importance of international cooperation and of the consequent need to secure the proper functioning of international organisations (see Waite and Kennedy, §§ 63 and 72, and Al-Adsani, § 54, both cited above; see also Article 234 (now Article 307) of the EC Treaty). Such considerations are critical for a supranational organisation such as the European Community[25]. This Court has accordingly accepted that compliance with Community law by a Contracting Party constitutes a legitimate general-interest objective within the meaning of Article 1 of Protocol No. 1 (see, mutatis mutandis,S.A. Dangeville, cited above, §§ 47 and 55).

151. The question is therefore whether, and if so to what extent,that important general interest of compliance with Community obligations can justify the impugned interference by the Irish State with the applicant company's property rights.

152. The Convention does not, on the one hand, prohibit Contracting Parties from transferring sovereign power to an international (including a supranational) organisation in order to pursue cooperation in certain fields of activity (see M. & Co., p. 144, and Matthews, § 32, both cited above). Moreover, even as the holder of such transferred sovereign power, that organisationis not itself held responsible under the Convention for proceedings before, or decisions of, its organs as long as it is not a Contracting Party (see Confédération française démocratique du travail v. European Communities, no. 8030/77, Commission decision of 10 July 1978, DR 13, p. 231; Dufay v. European Communities, no. 13539/88, Commission decision of 19 January 1989, unreported; and M. & Co., p. 144, and Matthews, § 32, both cited above).

153. On the other hand, it has also been accepted that a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party's “jurisdiction” from scrutiny under the Convention (see United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports 1998-I, pp. 17-18, § 29).

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